"competent." Mr. Bannister is represented as having denied the acceptance of such condition until a letter was produced containing evidence of that fact, when he explained that in the case referred to he had an understanding with the San Francisco agent of the vessel that he would have his own surveyor. Mr. Williamson claims to have then assured Mr. Bannister that, as Balfour, Guthrie & Co. would have control of the captain when the vessel arrived, they would be able to arrange it so that Mr. Bannister should have his own surveyor. The testimony of Mr. Bannister as to what passed at this interview is as follows:

"Mr. Williamson came down to our office to see me, and tried to get me to waive the objection I had raised, and to allow 'competent surveyor' to stand in the charter. I told him I was very sorry I could not do this, although I had no doubt, as he said, his firm would see that there was no trouble in loading the ship for us. But I said my bid to Mr. Bruce was based on the San Francisco shippers' form of charter, and especially I named to Mr. Bruce, when I bid on the ship, that 'charterers' surveyor' was to be in the charter party, and if he wanted us to load the ship he had to complete the charter in terms of my bid. He argued with me a little, and tried to get me to waive that; but I insisted on it, and told him we should not change. He then agreed to get the word 'charterers' inserted in the charter party, and to cable that night to his Liverpool firm to have it done."

On June 25, 1891, Balfour, Guthrie & Co. wrote to Starr & Co. as follows:

"We duly received your favor of the 22nd Inst., and we have since explained to you verbally the reason our Liverpool friends were unable to get the word 'charters' surveyor' left in the charter party per Galgate. You may rest satisfied, however, that we will see that there is no trouble in this connection. You may be assured our Liverpool friends have satisfied themselves that the signatures under these charter parties are correct, and under proper authority."

To this letter there was no reply in writing. July 7, 1891, Balfour, Guthrie & Co. transmitted to Starr & Co., by letter, two additional copies of the charter of the Galgate. The receipt of the letter with its inclosures was on the same day acknowledged in the following terms:

"San Francisco, July 7th, 1891. "Messrs. Balfour, Guthrie & Co., City-Dear Sirs: We have to acknowl edge with thanks yours of even date, with stated inclosures. [Signed] H. M. A. Miller, Secy."

"Yours, truly,

It is somewhat significant that in no letter or cablegram that passed between any of the parties at the time of this transaction is it stated that there was any agreement as to the surveyor clause. This feature of the case, and the testimony concerning the corre spondence and conduct of the parties subsequent to June 5th, are referred to for the purpose of indicating that, aside from the conclusive character of the written evidence, I do not now, upon a review of the testimony, find, as I did before, that there was a verbal agreement providing for charterers' surveyor.

The Galgate arrived in San Francisco January 30, 1892, and on February 1, 1892, Balfour, Guthrie & Co. notified Starr & Co. of her

arrival. The correspondence relating to the final refusal of Starr & Co. to carry out the charter party is as follows:

"San Francisco, 1st February, 1892. "Galgate.

"Messrs. Starr & Co., San Francisco-Dear Sirs: We beg to advise you of the safe arrival of the above vessel in this port on 30th ulto. under charter to your goodselves outwards. We are, dear sirs,

"Yours, faithfully,

[Sig.] Balfour, Guthrie & Co., "Alex. B. Williamson,

To which Starr & Co. replied as follows:

"Agents."

"San Francisco, February 2nd, '92. "Galgate.

"Messrs. Balfour, Guthrie & Co., City-Dear Sirs: We have your favor of the 1st inst., regarding above vessel, which, however, is not under charter to us.

"Yours, truly, [Signed] A. Bannister, Vice President and Manager." Balfour, Guthrie & Co. responded in the following terms: "San Francisco, 8th February, '92. "Galgate.

"Messrs. Starr & Co., San Francisco-Dear Sirs: We beg to acknowledge receipt of your favor dated 2nd inst., and we will be obliged by your kindly informing us on what grounds you now for the first time make the assertion that you are not the charterers of above vessel. In your letter to us, dated 22nd June, 1891, you informed us that the charter party was in order, except that you wanted the word 'charterers' before 'surveyor' to stand as printed, to which we replied on the same date, assuring you that we would see that there should be no trouble in this, connection. Now that the ship has arrived here, this assurance we are prepared to make good, by agreeing, as we are authorized to do, that, as requested by you, the word 'charterers' before the word 'surveyor' may stand as originally printed in the charter party, and that the word 'competent' before the word 'surveyor' be expunged. [Signed] Balfour, Guthrie & Co. "pp. Alex. B. Williamson."

"Yours, faithfully,

To which Starr & Co. replied as follows:

"San Francisco, February 9th, 1892. "Galgate.

"Messrs. Balfour, Guthrie & Co., City-Dear Sirs: Your favor of the 8th inst., relating to the above ship, is to hand. We have never been the charterers of this ship, and do not desire, as proposed in your said favor, to charter her now.

"Yours, truly,

[Signed] A. Bannister, Vice President & Manager."

From the foregoing it appears that on February 2, 1892, Starr & Co. refused to accept the vessel and load her in accordance with the terms of the charter party. On that day the rate of charter for the Galgate was 17s. 6d. for the voyage therein named. The measure of damages in this case is, therefore, the difference between 40s. per ton, the rate named in the charter party, and 17s. 6d. The difference is 22s. 6d. per ton. The carrying tonnage of the vessel was 3,508 tons. The rate of exchange was $4.86. The difference in American money would therefore amount to the sum or $19,180. A decree will be entered in favor of the libelant for this amount, together with interest and costs.

THE SEGURANCA.

VANHOESEN et al. v. THE SEGURANCA.

(District Court, S. D. New York. December 5, 1893.)

MARITIME LIEN-WATCHMEN OF CARGO-CONTRACTOR.

A contractor, who, pursuant to his general business, furnishes watchmen to watch the cargo of a vessel before delivery, for a vessel in her home port, has no maritime lien where the workmen are not employed by the ship, and have no lien themselves to which such contractor can be subrogated. Such a case is similar to that of furnishing any other repairs or supplies in the home port.

Semble, such watchmen and stevedores, when employed by the ship's representative, on her credit, may have a lien for their wages in enabling the ship to earn her freight, even in the home port, as analogous to the wages of seamen, to pilotage, towage, or wharfage.

In Admiralty. Libel by P. D. Van Hoesen and another against the steamship Seguranca to recover for watchmen's services. Libel dismissed.

Wing, Shoudy & Putnam, for petitioners.

Carter & Ledyard and Mr. Bayliss, for respondent.

BROWN, District Judge. The petitioners carry on the business of employing and furnishing men as watchmen for vessels in this city. The petition and proofs show that in December, 1892, they supplied several different persons as watchmen to watch the cargo of the Seguranca, which was lying at Roberts' Stores in Brooklyn, until the cargo could be delivered to the consignees. Some of the cargo, as I understand, was on the dock, and some on board the vessel. New York was the vessel's home port.

The services, it is said, were substantially like those of stevedores, for which, as the claimants contend, there can be no maritime lien in the home port.

The ground upon which it was formerly held that a stevedore had no lien, was that his service was not a maritime service; and consequently no lien was allowed therefor, whether the vessel was foreign, or domestic. The weight of authority, however, now is, that such services are maritime. The Windermere, 2 Fed. 722; The Canada, 7 Fed. 119; The Circassian, 1 Ben. 209; The George T. Kemp, 2 Low. 477; The Hattie M. Bain, 20 Fed. 389; The Scotia, 35 Fed. 916; The Gilbert Knapp, 37 Fed. 209; The Main, 2 C. C. A. 569, 51 Fed. 954.

There are several cases in which it has been intimated, or might be inferred from the language of the court, that though the service is a maritime one, no lien arises therefor in the home port. The George T. Kemp, 2 Low. 483; The Main, 2 C. C. A. 569, 51 Fed. 954; Norwegian Steamship Co. v. Washington, 57 Fed. 224; The Hattie M. Bain, 20 Fed. 389. And in the case of the Gilbert Knapp, 37 Fed. 209, that view is directly expressed, upon the analogy of the rule as regards repairs and supplies; although the question there chiefly considered was the maritime nature of the service; and the case was decided on other grounds. I have not found, however, any

case actually adjudicated on this ground, where the maritime nature of the service was recognized.

On the other hand, a lien for watchmen's and stevedore's services, upon a domestic vessel, where their services were necessary to enable her to earn her freight, was upheld by Benedict, J., in the eastern district of New York, in the case of The Trimountain, 5 Ben. 247; and his ruling is quoted with approval by Judge Choate in The Erinagh, 7 Fed. 231; though in the latter case the vessel was foreign. In the cases of The Onore, 6 Ben. 564; The River Queen, 2 Fed. 731; and The Senator, 21 Fed. 191; similar services were held to create a maritime lien, without reference to the vessel's home port; and in the eastern district of Missouri, says Thayer, J., (The Wyoming, 36 Fed. 493, 495,) "a maritime lien is allowed for stevedore's services in the home port, when the service is shown to have been rendered on the credit of the vessel, or when such fact is fairly inferable from the circumstances under which the service was rendered."

These adjudications, it seems to me, are most in harmony with the maritime law as respects the wages of persons who render their services upon the employment of the ship's officers or agents, on the credit of the ship, and to enable the ship to perform her obligations. There is no true analogy, it seems to me, except in the maritime nature of the service, between the wages claims of such persons, and the furnishing of repairs and supplies in the home port. The latter are usually furnished by contract, not with the ship's officers, but with the owner, or his agent; they are often for large amounts, contracted for in the ordinary course of mercantile dealings, like other nonmaritime contracts; and they are not usually supplied in the course of any voyage, nor to enable the ship to perform any maritime duty already incurred; nor under any immediate necessity for the work, or for the supplies, or for the ship's credit to obtain them; and they are, therefore, presumptively furnished on the credit of the owner.

The personal services of watchmen or stevedores, on the other hand, in cases like the present, are necessary to enable the ship to discharge her maritime duty, to accomplish her voyage, and to earn her freight; they are rendered in the course of the voyage; since the voyage is not ended as regards the goods, until they are delivered, or ready for delivery. These men are mere substitutes for seamen, who formerly did, and often still do, the same work, and have a lien therefor. See The Mattie May, 45 Fed. 899, and The Scotia, 35 Fed. 916. It is but right that the same lien should be allowed for the wages of the substitutes, who are employed merely for greater safety, skill, and economy. The men live along the docks; they rarely, if ever, deal with the owners, or have any knowledge of them, or of their credit, or look to them for their pay. When directly employed by the agents or officers of the ship, under the necessity of immediate service, and to enable the ship to earn her freight, the wages of such workmen, though like repairs and supplies in being maritime, are not at all analogous, as it seems to me, as respects their status, to contracts for repairs and supplies in the home port;

nor do I perceive any reason why our anomalous exception as regards repairs and supplies should be extended to such wages claims. They seem to me more truly analogous to seamen's services, or to pilotage, towage, and wharfage, furnished to aid the ship to perform her duty, for all of which, liens in the home port are allowed. The Kate Tremaine, 5 Ben. 60, 68. Chapman v. Engines, 38 Fed. 671, 672; The Allianca, 56 Fed. 609, 613. In most maritime codes, indeed, the wages claims of watchmen, of ship or cargo, take precedence even over those of seamen. Code de Com. § 191; German Code, § 757; Italian Code, § 675; Netherlands Code, § 313.

If, therefore, the libelants were seeking to enforce a lien for wages for their personal services as watchmen, I should feel bound, both upon precedent, and for the reasons above stated, to sustain their claim. But such is not this case. The libelants are in the situation of contractors who supply the services of other persons as workmen, and presumably make a profit by it. There is no claim to any lien by subrogation or substitution; and no such claim could be sustained. For no lien ever accrued to the watchmen themselves, since they were not employed by the ship, but by the libelants only; and to the libelants only did they look for their pay. This distinction was anciently recognized, and it was acted on by this court in the case of The Hattie M. Bain, 20 Fed. 389. The libelants were employed by the owners; they cannot claim wages, since they rendered no personal services. They simply supplied the labor of other persons, whom they employed and paid. This differs in no degree, so far as I can perceive, from a contractor's supply of workmen to do repairs; and thus the present case falls strictly within the analogy of repairs and supplies in the home port; and, on this ground, the libel must be dismissed.

THE ENCHANTRESS.

HARD et al. v. THE ENCHANTRESS.

(District Court, S. D. New York. December 4, 1893.)

1. SHIPPING-BILL OF LADING-INACCURACY OF MARKS EXCEPTED. Upon a bill of lading excepting liability for obliteration or inaccuracy of marks, the ship is not concluded by the marks stated in the bill of lading without further proof of the actual marks shipped, and is prima facie acquitted by the delivery of all the goods taken aboard.

2. SAME-SHORT DELIVERY OF COFFEE-SURPLUS BAGS REJECTED — APPLICATION OF PROCEEDS TO CHARTERER OF SHIP AS SURETY.

Though a chartered ship is liable in rem for the nondelivery of cargo, she has a reciprocal lien on the cargo, or its proceeds, to enable her to perform her obligation to deliver the goods or pay their value; and a purchaser of rejected bags, knowing the facts, cannot apply the credit to prior claims against other vessels, to the exclusion of his claim for short delivery against the vessel carrying the same cargo. The proceeds are first applicable to a discharge of the claim against the carrying ship.

In Admiralty. Libel by Anson W. Hard and another against the steamship Enchantress to recover for short delivery of cargo. Dismissed.